Nikki Chamberlain's Submissions on Class Action Reform to the New Zealand Law Commission 2021 (Responding to Issue Paper 45)

2021 ◽  
Author(s):  
Nikki Chamberlain
Keyword(s):  
New Zealand ◽  
Class Action ◽  
Law Commission

scholarly journals Women's Experiences of the Justice System

1997 ◽  
Vol 27 (4) ◽  
pp. 649
Author(s):  
J Morris
Keyword(s):  
New Zealand ◽  
Justice System ◽  
Access To Justice ◽  
Women’S Experiences ◽  
Women's Experiences ◽  
The Law ◽  
The Impact ◽  
Law Commission

This article considers the impact of gender upon women's experiences of the New Zealand justice system, as lawyers and clients. As well as summarising study and survey material, it draws upon information provided to the Law Commission in the course of its project on Women's Acces to Justice: He Putanga mo nga Wahine ki te Tika. It concludes that women are still significantly disadvantaged by the justice system as a result of their gender and that there is an ongoing need for debate and consideration of these issues if women's access to justice is to be improved.

scholarly journals There is no Such Thing as a Sham Trust

2013 ◽  
Vol 44 (1) ◽  
pp. 115
Author(s):  
BoHao (Steven) Li
Keyword(s):  
New Zealand ◽  
Legal Issues ◽  
Starting Point ◽  
Bilateral Transaction ◽  
Appeal Decision ◽  
The Law ◽  
Trust Law ◽  
Court Of Appeal ◽  
Law Commission

The Court of Appeal decision in Official Assignee v Wilson is the leading New Zealand case on "sham trusts". Obiter, O'Regan and Robertson JJ held that for a sham trust to exist, the settlor and trustee must have a common intention to not create a trust. Post-Wilson, debate continues over the precise elements that render a trust a sham. The Law Commission suggested that the sham doctrine, as a means of analysing the validity of an express trust, may not be the best approach. A better starting point would be a return to the certainty of intention requirement. In arguing that the Law Commission's recommendation is correct, this article will discuss three legal issues: whether an express trust is a unilateral or bilateral transaction; whether the excluded evidence has always been part of the objective intention requirement; and whether the legislative and policy factors have made foreign trust law distinct from New Zealand trust law. Finally, this article will expand on the test proposed by the Law Commission.

scholarly journals Judicial Specialisation in a Generalist Jurisdiction: Is Commercial Specialisation Within the High Court Justified?

2015 ◽  
Vol 46 (2) ◽  
pp. 307
Author(s):  
William Steel
Keyword(s):  
New Zealand ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Common Law ◽  
Future Research ◽  
High Court ◽  
The Law ◽  
The Government ◽  
Law Commission ◽  
The Way

In November 2013, after a series of Law Commission reports and years of academic, professional and judicial discussion, the Government introduced legislation to Parliament to replace the existing High Court commercial list with a specialist commercial panel. Whilst this panel would bring New Zealand into line with many comparable common law jurisdictions, this article argues that the case for specialisation has not been established. In particular, it notes that there is no publically available evidence to support the claim that the High Court is losing its commercial jurisdiction, or that commercial parties are choosing to resolve their disputes offshore or through alternative dispute resolution. Accordingly, this article argues that future research by the Law Commission, or other research agency, is required before specialisation can be justified. In reaching this conclusion, it also examines the issues that may arise if the Government decides to continue with its proposed reform under cl 18 of the Judicature Modernisation Bill 2013, suggesting changes along the way.

scholarly journals Burgeoning Baigent?: A Critique of the Law commission's Analysis of Baigent's Case

1998 ◽  
Vol 28 (2) ◽  
pp. 283
Author(s):  
Melanie Smith
Keyword(s):  
New Zealand ◽  
State Enterprise ◽  
Bill Of Rights ◽  
The Law ◽  
State Enterprises ◽  
Law Commission

Who is responsible when a Crown entity or State enterprise breaches an individual's rights under the New Zealand Bill of Rights Act 1990?  Is the Crown or the breaching entity primarily liable, or both?  The Law Commission investigated this question in relation to liability arising out of Baigent's case.  In its report the Law Commission recommended significantly narrowing the Crown's liability to exclude State enterprises and Crown entities.  This article investigates the Law Commission's reasoning and recommendations.

scholarly journals Reforming New Zealand's Class Action Procedures to Enhance Efficiency and Improve Access to Justice

2021 ◽  
Author(s):  
Danielle Thorne
Keyword(s):  
New Zealand ◽  
Class Action ◽  
Access To Justice ◽  
Efficient Procedure ◽  
Legislative Reform ◽  
Class Actions ◽  
Opt Out ◽  
Action Type ◽  
Enhance Efficiency ◽  
Action Procedure

<b>Abstract </b><p>This thesis addresses the question of whether New Zealand should reform its class action procedures in order to better meet the class action objectives of efficiency and access to justice. Class actions are a mechanism whereby groups of claimants with the same or similar claims can band together and bring proceedings. The ability for groups of similarly affected claimants to bring proceedings together provides certain advantages, including efficiency (both judicial efficiency and cost efficiency) and access to justice (where there may otherwise be none). The existence of a class action mechanism can also have a regulatory effect and serve to discourage illegal or inappropriate conduct. </p> <b>Currently, New Zealand does not have a dedicated class actions regime, and instead operates a class action type procedure under r 4.24 of the High Court Rules (known as a representative action). A review of the New Zealand position in relation to r 4.24 indicates that while there is a substantial body of law relating to the use of the representative action procedure, the objectives of the representative action procedure are not being met. The lack of legislative guidance in relation to the representative action has created significant difficulties for claimants in New Zealand. </b><p>Reforming the New Zealand class action procedure through legislative reform would provide a more efficient procedure and enhance access to justice. Wholesale legislative reform in the form of a dedicated class actions statute would be the best way forward for New Zealand. Legislative reform would need to address particular issues that have arisen in Australia and Ontario, including issues associated with the same interest requirement, opt-in and opt-out mechanisms, settlement requirements and limitation periods. The experience in Ontario and Australia illustrates the importance of ensuring the legislation is as clear as possible, and learning from the experience in those jurisdictions is vital if the objectives of the class action procedure are to be met. </p>

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